WealthTV, MASN Get Boost From FCC

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Washington -- WealthTV, Mid-Atlantic Sports Network (MASN) and probably NFL Network just got a boost from the Federal Communications Commission in their forced carriage disputes with major cable companies.


The FCC's Media Bureau chief, claiming an administrative law judge (ALJ) failed to meet a Dec. 9 deadline, said she now intends to rule on a batch of program carriage complaints filed by independent programmers against Comcast, Time Warner Cable, Cox Communications and Bright House Networks.


Media Bureau chief Monica Desai, in a decision released on Christmas Eve, said the ALJ defaulted on his obligation to return with recommendations by Dec. 9, despite having 60 days to act.


"The ALJ's authority to issue a recommended decision in these proceedings expired after Dec. 9. The Media Bureau will thus proceed to resolve the carriage disputes ..." Desai explained in a nine-page ruling.


A few days later, FCC chairman Kevin Martin indicated that the ALJ lost control of the disputes by not adhering to the deadline.


"When that time frame passed, the administrative law judge no longer had authority to issue a decision without a subsequent order from the Media Bureau," Martin said. "The ALJ did not meet their deadline, and indeed they did not plan on starting litigation ... for many months. At that point, I thought it was important for the bureau take it back and get it done as quickly as they can."


Desai's ruling directly affects complaints by WealthTV against Time Warner, Bright House, Cox, and Comcast; and MASN, which televises Baltimore Orioles and Washington Nationals Major League Baseball games, against Comcast.


WealthTV alleges that it was denied carriage to allow the cable companies to favor an affiliated channel -- MOJO -- with similar content, violating anti-discrimination provisions in federal cable law.


“We are grateful to the FCC for recognizing the importance of addressing carriage access discrimination in a timely manner, especially for small emerging businesses," said Robert Herring, Sr., CEO and co-founder of WealthTV.


When Desai referred the cases to the ALJ in October, she included a similar, but not identical, complaint filed by NFL Network against Comcast. Desai's Dec. 24 ruling didn't refer to the NFL Network-Comcast dispute on whether Comcast is discriminating by distributing NFL Network on a sports tier purchased by about 2 million subscribers.


Martin suggested if NFL Network asked the Media Bureau to reclaim its case, Desai would do so.


"The logic actually would apply in the same way because that one had a deadline as well," Martin said.


Lawyers involved in the NFL Network-Comcast matter said they expect the ALJ would lose control. NFL Network last Monday asked Desai to confirm that the ALJ no longer had power over its case.


"In the wake of the Media Bureau's order last week addressing similar discrimination claims brought by other independent channels, we simply are asking for clarification of the status of the discrimination claim that we filed last May against Comcast," NFL spokesman Dan Masonson said.


Comcast last Tuesday made filings at the FCC designed to keep the MASN case with the ALJ. It filed a motion to stay Desai's ruling, combined with an emergency request that all FCC members overturn Desai's ruling.


"The FCC has no factual or legal justification for forcing these networks onto our cable systems and driving up prices to cable consumers.  We look forward to detailing our pro-consumer actions and the particulars of these cases," said Sena Fitzmaurice, Comcast's senior director of corporate communications and government affairs.


Although WealthTV and MASN had asked the Desai to seize their cases from the ALJ, NFL Network had not done the same. WealthTV and MASN complained after the ALJ made a number of unfavorable rulings, including a decision to postpone the first hearing date until March 17. WealthTV filed its first complaint, against Time Warner Cable, on Dec. 20, 2007.


ALJ Arthur Steinberg, who was later replaced by ALJ  Richard Sippel, said in late November that he was incapable of deciding all the cases by Desai's Dec. 9 deadline.


"The 60-day timeframe set forth in the [Media Bureau order] cannot be achieved. This is an extremely complex proceeding involving six separate program carriage complaints, three complainants, and four [cable operators]," Steinberg ruled.


Steinberg's five-page opinion had a number of surprises for WealthTV, MASN and the NFL Network, if not for Desai. He ruled that the networks would have the burden of proof in demonstrating that the cable companies had discriminated because they didn't have a financial interest in them, and he also said the proceedings would begin anew, meaning Desai's initial finding of discrimination would be set aside.


Martin, who appointed Desai, is expected to step down when President-elect Barack Obama is sworn in on Jan. 20. A ruling against the cable companies, by Desai or her successor, can still be appealed to the full FCC.


"I don't know if the Media Bureau will be able to finish it before Jan. 20 or not," Martin said.

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